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The judgment of the Supreme Court is clear: banks may not specify processing fees for loans to enterprises in their terms and conditions (GTC). This restricts the freedom with which entrepreneurs may contract with one another. If fees have been charged by the bank, the entrepreneur may now reclaim them.

The BGH judgment limits the freedom of entrepreneurs to conclude contracts freely. The Federal Court of Justice aims at loan agreements between companies and banks . If a bank concludes a loan agreement with an entrepreneur, it is not allowed to charge processing fees (wording: running time-independent processing fee ) in its General Terms and Conditions ( GTC ). The Federal Court of Justice ruled in two judgments on 04.07.2017 .

Lawsuit of two entrepreneurs

The ruling of the Federal Court was preceded by two complaints from entrepreneurs. In both cases, the lending bank had agreed processing fees in its terms and conditions. In both cases, the entrepreneurs demanded the processing fees paid back. The two suits of the entrepreneurs were made independently and also had different judgments. One of the judgments justified the entrepreneur. At the other complaint the court could not agree with the opinion of the businessman.

BGH: Processing fees are price-side agreements

In its ruling, the BGH stated that processing fees in the general terms and conditions of loan agreements for corporate loans and consumer credit should be treated equally. The BGH sees in the relevant clauses in the terms and conditions of the loan agreement so-called price agreements. Additional price agreements are subject to § 307 of the BGB of content control. The fee clauses do not stand such a content control, because the borrower is inappropriately disadvantaged, the BGH in its judgment.

Thus, the bank has to pay its costs from the current interest and may not charge these as fees and additionally claim from the borrower. This affects commercial borrowers as well as consumers.

Limitation of claims

If an entrepreneur wants to reclaim processing fees that he has paid in the past, it is important to consider a possible limitation of his claims . The Bundesgerichtshof refers to the decision of the XI. Civil Senate of the Federal Court of Justice on Consumer Loans. There is another judgment with the reference XI ZR 348/13.

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